DEPARTMENTOFDEFENSE LAW OFWARMANUAL JUNE2015

ensuring the right and opportunity of every citizen to vote and to be elected at genuine periodic
elections. 94
1.6.3.2 Different Views on the Applicability of Human Rights Treaties. In
conducting operations with coalition partners, it may be important to consider that some States
may have different perspectives on the applicability of human rights treaties. Such differences
may result from different legal interpretations or from the fact that the other State is a Party to
different human rights treaties than the United States. For example, the European Court of
Human Rights – as well as some European States – have construed certain obligations under the
European Convention on Human Rights (ECHR) as applicable to their military forces abroad
during occupation. 95
1.6.3.3 International Covenant on Civil and Political Rights (ICCPR). The
United States is a Party to the International Covenant on Civil and Political Rights (ICCPR).
The ICCPR creates obligations for a State with respect to persons within its territory and
subject to its jurisdiction. 96 The United States has long interpreted the ICCPR not to apply
abroad. 97 The inclusion of the reference to “within its territory” in Article 2(1) of the ICCPR
was adopted as a result of a proposal made by U.S. delegate Eleanor Roosevelt – specifically to
94 Fourth Periodic Report of the United States of America to the United Nations Committee on Human Rights
Concerning the International Covenant on Civil and Political Rights, Dec. 30, 2011, 506 (“With respect to the
application of the Covenant and the international law of armed conflict (also referred to as international
humanitarian law or ‘IHL’), the United States has not taken the position that the Covenant does not apply ‘in time of
war.’ Indeed, a time of war does not suspend the operation of the Covenant to matters within its scope of
application. To cite but two obvious examples from among many, a State Party’s participation in a war would in no
way excuse it from respecting and ensuring rights to have or adopt a religion or belief of one’s choice or the right
and opportunity of every citizen to vote and to be elected at genuine periodic elections.”).
95 Case of Al-Skeini and Others v. The United Kingdom, ECtHR, 55721/07, 149 (Jul. 7, 2011) (“It can be seen,
therefore, that following the removal from power of the Ba’ath regime and until the accession of the Interim
Government, the United Kingdom (together with the United States) assumed in Iraq the exercise of some of the
public powers normally to be exercised by a sovereign government. In particular the United Kingdom assumed
authority and responsibility for the maintenance of security in South East Iraq. In these exceptional circumstances
the Court considers that the United Kingdom, through its soldiers engaged in security operations in Basrah during
the period in question, exercised authority and control over individuals killed in the course of such security
operations so as to establish a jurisdictional link between the deceased and the United Kingdom for the purposes of
Article 1 of the (ECHR).”).
96 International Covenant on Civil and Political Rights, art. 2(1), Dec. 19, 1966, 999 UNTS 171, 173 (“Each State
Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to
its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour,
sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”).
97 See, e.g., U.N. Human Rights Committee, Summary Record of the 1405th Meeting, U.N. Doc. CCPR/C/SR.1405
6-7 (20) (Apr. 24, 1995) (“Klein had asked whether the United States took the view that the Covenant did not apply
to government actions outside the United States. The Covenant was not regarded as having extraterritorial
application. In general, where the scope of application of a treaty was not specified, it was presumed to apply only
within a party’s territory. Article 2 of the Covenant expressly stated that each State party undertook to respect and
ensure the rights recognized ‘to all individuals within its territory and subject to its jurisdiction’. That dual
requirement restricted the scope of the Covenant to persons under United States jurisdiction and within United
States territory. During the negotiating history, the words ‘within its territory’ had been debated and were added by
vote, with the clear understanding that such wording would limit the obligations to within a Party’s territory.”).
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